Date: 20060919
Docket: IMM-7623-05
Citation: 2006
FC 1120
Ottawa, Ontario, September 19, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ASWINDER
KAUR
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
While the
hearing of this judicial review proceeded in French, counsel requested for the
benefit of the applicant that reasons be drawn in English.
[2]
Aswinder
Kaur (the applicant) is a citizen of India
whose claim for need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act (the Act) was rejected by the Refugee Protection
Division (the tribunal) on December 5, 2005 finding her not credible and her
story a “total fabrication”.
[3]
She seeks
to quash the tribunal’s decision, her counsel arguing it arrived at its
credibility determinations without regard to or by ignoring the totality of the
evidence.
[4]
The
essence of her story centers on her husband’s activities beginning in April,
2001 in the Khalra Mission Committee (KMC) an organization formed to provide
assistance to individuals, victims of police brutality.
[5]
As a
result, she alleges in her Personal Information Form (PIF) the police have
persecuted her husband who went into hiding in the Fall of 2003 after having been
arrested, detained and tortured several times.
[6]
In her PIF,
she states the event which precipitated her husband going into hiding was his
arrest in September, 2003 after the police found out he was going to file a
case against them. She also states in her PIF she had been arrested twice:
once with her husband on April 14, 2003 after he gave a speech the previous day
at a KMC meeting in a Gurdwara where many speakers denounced police atrocities;
the second time was on January 5, 2004 when she alleges she was brought to the
police station and was raped by three drunken police officers.
[7]
The
tribunal arrived at its credibility determinations finding contradictions, omissions
and implausabilities in her testimony and by contrasting that testimony with
her point of entry interview on October 25, 2004 (the POE) and her PIF.
[8]
In summary
form, the tribunal rested its credibility findings on the following:
(a)
She
failed to mention during her POE interview the January 5, 2004 rape by the
police the tribunal also finding her attempt to blame the interpreter for
having failed to translate what she told him about being raped was not
believable because “she did not at any time before the hearing mention the
interpreter had made a mistake about her story.” The tribunal characterized
the story she gave at POE as “totally different from her PIF narrative.”
(b) The reasons she put forward in her testimony for being
detained and tortured in January of 2004 differed from that which she wrote in
her PIF. In her POE interview she is said by the tribunal to have told the
reason for her arrest was that she was suspected of transferring arms from
Pakistan while in her PIF she wrote the reason was she was provoking people
against the police;
(c) The reason for her arrest on April 14, 2003 and what
happened at the police station that day were different in her PIF from what she
testified to. According to the tribunal, in her PIF she wrote she was arrested
because she was provoking people against the police and at the police station
the police slapped her and verbally abused her. In her testimony, the tribunal
found she testified she was arrested because she got between her husband and the
police who had arrived at their home to arrest him and that at the police
station she had been held by the neck.
(d) The tribunal discerned an implausibility in her
testimony as to why she fled India. According to the tribunal,
she answered “yes” to a question by the tribunal’s presiding member, who was
not assisted by an RPO at the hearing, that her and her husband’s involvement
in the KMC was the reason they had problems in India. The tribunal then recited her evidence
that she knew practically nothing at the KMC and April 13, 2003 was the only
time she had ever done anything for the KMC “never before, or never since”.
The tribunal wrote:
“The tribunal finds incredible that a person would have to
leave her family and country because she once prepared food for an organization
in which her husband participated. The story is not believable nor is it
believed. The tribunal rather believes that her story is one of total
fabrication on the claimant’s part. She has not shown, with credible evidence,
that she was the victim of police abuse.”
(e)
The
tribunal then examined exhibit P-3 dated March 14, 2005 a report of two examinations
by a doctor, one on April 14, 2003 and the other on January 6, 2004. The
tribunal stated this document “does mention that she alleged to have been raped
by the police. However, the tribunal went on to say “this being the very
reason for her medical examination the doctor examined her and had he been in a
position to confirm that rape had indeed occurred, the doctor would surely have
mentioned it. The fact that she did not mention rape during her interview
Canadian Immigration officials on October 25, 2004 is further confirming
evidence that she was not raped by the police in India. She is not credible.”
(f)
The
tribunal found a “serious” discrepancy between her testimony and her PIF on
what happened to her father who died after she had arrived in Canada. The tribunal contrasted her
written PIF that the police “beat my old father to find us” with her testimony
that he died because being old and sick when the police came to see him he
became nervous and died. The tribunal criticized exhibit P-6, the death
certificate of her father, as not corroborating the cause of his death.
(g) Finally, the tribunal asked her to explain her answer
to question 18 of her POE interview contrasting what was reported there with
her testimony at the hearing. At the POE interview, the text says she reported
saying “the police came to my home on several occasions and tortured me again.”
In her testimony, she stated the police had used abusive language and confirmed
there was no physical torture. The tribunal added “but then immediately
followed by saying “police hold women by the hair and spin them around”. The
tribunal concluded “She was not believed nor could she explain when asked to do
so how this spinning was done. This is yet another exaggeration of what is
believed to be creative and unbelievable testimony. She has not been a
credible or trustworthy witness for her claim to refugee protection.”
Analysis
[9] It is settled law that
credibility findings made by the Refugee Protection Division are findings of
fact where the reviewing court can intervene only if it finds the tribunal
“based its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard to the material before it” as set
out in subsection 18.1(4)(b) of the Federal Courts Act, a standard which
is equivalent to the standard of patent unreasonableness.
[10] This standard of review is an
extremely deferential one. Courts must not re-visit the facts or re-weigh the
evidence. Only where the evidence viewed reasonably is incapable of supporting
the tribunal’s finding will a fact-finding be patently unreasonable as for
example where there is no evidence at all for a significant element of the
tribunal’s decision.
[11] In Sadat Jamil v. The Minister of
Citizenship and Immigration (2006 FC 792) I wrote:
“There is a
well-recognized line of cases from the Federal Court of Appeal and this Court
which has conveniently been summarized by Justice Martineau in R.K.L v. Canada
(Minister of Citizenship and Immigration) 2003 FCT 116 that a Refugee Board
must not be zealous to find an applicant not to be credible and “must not be
over-vigilant in its microscopic examination of the evidence of persons who
testify through interpreters and tell tales of horror in whose objective
reality there is reason to believe.” See the Federal Court of Appeal’s
decisions in Attakora v. Canada (Minister of
Employment and Immigration) (1989) 99 N.R. 168, along with Owusu-Ansah v. Canada
(Minister of Employment and Immigration) (1989) 98 N.R. 312 and Frimpong
v. (Canada Minister of Employment and Immigration) (1989) 99
N.R. 168.”
“These cases as
applied by the Federal Court of Appeal itself and by this Court proscribe
credibility findings arrived at by, for example:
Findings for which there was no evidence;
Findings of the
tribunal based on conjecture, resulting in unjustified and unsupported
inferences regarding the circumstances leading to an application for refugee
status;
Inconsistencies drawn
between POE notes and an applicant’s testimony or the applicant’s PIF where a
tribunal dwells on details and not on the substance of the claim and leads to
misconstruction of the evidence. Any such inconsistencies should be major and
not minor and sufficient by itself to call into question the applicant’s
credibility. (See Mushtaq v. Canada (Minister
of Citizenship and Immigration) 2003 FC 1066; and
The
tribunal must be reasonable in rejecting an applicant’s explanation when
confronted with a contradiction and must not be quick to apply North American
logic and reasoning to a claimant’s behaviour, (see R.K.L., supra, at
para 12);
The tribunal must assess the applicant’s claim against the
totality of the evidence.”
[12] My reading of the transcript of the
hearing, a review of the tribunal’s decision and a consideration of the
arguments advanced by counsel leads me to conclude this judicial review
application should be allowed for a number of reasons.
[13] The tribunal misread or
misinterpreted the evidence in fundamental ways. I provide a few examples.
[14] First, the tribunal misinterpreted
the gist of her fear. She never advanced the notion the police were after her
because of her personal involvement with the KMC. At her POE interview, she
clearly stated her fear was tied to her husband’s association with the KMC (see
transcript page 109, question 28, see also transcript pages 172 and 181
concerning his testimony why the police are interested in her and her son.) Moreover,
it is clearly indicated in her Schedule I background information response that
“police falsely linked my family with helping the militants” (transcript, page
118 and POE at page 108) confirmed in her testimony pages 188-189 and the
reason why the police were interested in her “they were going to get
information about this man (her husband) from me”, transcript page 182. The
fact that police started alleging her husband had gone to Pakistan for arms
training was also mentioned in her PIF (transcript page 21) and in the POE (transcript
page 18). In my view she gave a reasonable explanation why the police were
looking for her and, in the circumstances, the tribunal’s implausibility
finding that her story was a total fabrication cannot stand. The evidence is
clear to the effect the police were interested in her because of her husband’s
activities in the KMC and she knew where he was hiding.
[15] The tribunal appreciated the fact
the applicant had mentioned being raped by the police interview as far back as
October 9, 2004 in her Schedule 1 written answers which preceeds the POE (see
transcript page 118) and yet takes no account of this fact in reaching the
conclusion she did not mention the rape during the POE interview.
[16] The tribunal did not factor
another element. In her PIF filed on the 3rd of November, 2004
(transcript page 21) she wrote the following note:
Note: On 25 October, 2004, I was called
at CIC for interview. After I checked with the interpreter and found that they
did not mention about my rape and my father’s death in interview notes. Even I
was not allowed to give details of my problem. I was interrupted while
explaining my problem.
She was questioned on the point (transcript pages 190 and 191)
and she clearly indicated the interpreter did not omit translating her
testimony that she was raped but that the interpreter stopped her while she was
giving all of the details. The tribunal did not take into account or comment
on her explanation but rather found she blamed the interpreter and had only
mentioned this excuse at the hearing which is incorrect.
[17] The evidence does not support the tribunal’s finding
that during her POE interview she stated the reason she was arrested on January
5th was because she was transferring arms from Pakistan. To the contrary, the POE
interview (transcript page 108) has her saying the reason she was arrested was
because she complained to the KMC. In any event she was not confronted on this
point.
[18] Second, there are a number of
examples where the apparent zeal of the tribunal to find contradictions led it
to ignore the evidence or to exaggerate minor inconsistencies or transform nuances
into contradictions. For example, no mention was made of the applicant’s
written answer that she was arrested in January of 2004 because she had
complained to the KMC about the police coming to her home (transcript page 118)
nor the fact that she testified the police had come to her father’s house where
“they held him, they shook him and they pushed him” (transcript page 161)instead
of using the word “beat” which is in her written PIF. Much time was spent on
Exhibit P-6 and the lack of mention there for the cause of his death. If there
was an inconsistency it was a minor one. How her father died was not central
to the gist of her fear. Another minor inconsistency, giving the tribunal the
benefit of the doubt on the point, related to the reason for the arrest on
April 14, and the fact that she said she was held by the neck rather than being
slapped in the face. Another area explored extensively by the tribunal for an
inconsistency was whether she had testified she had been held by the police by
the neck or held by her hair and spun.
[19] Third, quite apart from the evidentiary issues
identified above, counsel for the applicant makes the point the tribunal ignored or did not
take into account material evidence concerning the applicant’s husband’s
involvement with the KMC, an involvement which she described extensively at the
POE (transcript 108, question 18 and in her PIF) as well as the supplementary
evidence filed by her counsel after the hearing on the role of the KMC in India.
More important, his role was corroborated by a letter from the KMC itself. See
Exhibit P-4, transcript page 72 corroborated by Exhibit P-12, transcript Page
70 from a responsible person at the Gurdwara concerning the April 13, 2003
event. The tribunal failed to comment on this personal documentary evidence.
[20] Fourth, the tribunal did not confront the applicant
concerning Exhibit P-3 the letter from Dr. Singh who treated her after the
January 5, 2004 event in which he describes her wounds, stated she was
hospitalized for 3 days and stated the applicant alleged her wounds were caused
by police beatings and rape. The tribunal simply set aside this exhibit
because the doctor did not make a specific finding she had been raped. Nor did
he write, I might add, she had not been raped. In my view fairness requires
she be confronted on this point.
[21] In my view, the errors
identified in these reasons require that the applicant’s Refugee claim be given
a fresh look. I am of the view the tribunal failed to assess her fear of
return to Pakistan against the totality of the
evidence before it.
ORDER
THIS COURT ORDERS that this judicial review
application be allowed, the tribunal’s December 5, 2005 decision be set aside
and the applicant’s claim for refugee status be considered by a differently constituted
tribunal. No certified question was proposed.
“Francois
Lemieux”
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